State: Tribal case for new hearing on border issue 'overblown'

Sep 6, 2017 From staff reports

Attorneys for the Northern Arapaho and Eastern Shoshone tribes, along with the state of Wyoming, can all agree that the ongoing lawsuit over whether Riverton lies within the Wind River Indian Reservation is highly consequential.

What Wyoming's attorneys won't concede is that the 10th Circuit Court of Appeals's February ruling on the case conflicts with precedent established by other circuit courts and the U.S. Supreme Court.

After a three-judge panel ruled against the tribes -- and former defendant Environmental Protection Agency -- the Shoshones and Arapahos are now asking for all judges on the 10th Circuit to weigh in on the dispute. Such hearings are rare, but not unheard of.

If the 10th Circuit doesn't accept the request for a "en banc" hearing, the tribes could still ask the Supreme Court to take up an appeal through a writ of certiorari.

The back-and-forth debate between the parties' attorney now hinges on how February's ruling fits in with the three-step process developed by the Supreme Court that courts are instructed to use when determining whether a Indian reservation has been diminished.

In the 1984 case Solem v. Bartlett, the court said judges need to consider the following factors: the clear language of relevant Congressional laws, evidence of Congress's intent, and the treatment of the land in question after the passage of that legislation.

Riverton's circumstance bears some similarities to other boundary disputes in which courts have ruled, using the Solem analysis, that a reservation was not diminished.

In the 2016 Nebraska v. Parker case, the U.S. Supreme Court determined that the Omaha Indian Reservation was not diminished by a Congressional act, in part, because the sale of land did not include a "lump-sum payment," which was previously considered to be a prominent indication that Congress did, in fact, intend to diminish reservations.

However, the state's attorneys are arguing that the 1905 Act, which came 23 years after the relevant law in Parker, had other language Parker didn't -- specifically the word "cede" -- which made it clear that Congress intended to remove Riverton from the reservation.

The tribes noted that distinction still seems to conflict with the 8th Circuit's 1988 decision, United States v. Grey Bear, which determined that a North Dakota reservation was also not diminished by a 1904 Act of Congress that contained language almost identical to Congress's approach to Riverton.

In the North Dakota case, the law said the tribes "do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest."

In Riverton's case, only the word "convey" was swapped for the word "relinquish."

However, Wyoming's attorneys are arguing the Riverton contains a key difference from Grey Bear. The North Dakota tribe would retain, under the 1904 Act, a sum of lands identified by acreage.

The Wind River Indian Reservation's remaining land, in Riverton's law, was identified by a description of boundary lines.

That choice of words, Wyoming's attorneys argue, makes it clear that the reservation's boundary were reduced from their previous perimeter.

Both attorneys for Wyoming and the Wyoming Farm Federation Bureau are saying that the 10th Circuit decision does not conflict with precedent as much as the tribes argue it does.

Gina Cannan, attorney for WyFB, said the tribes "mischaracterize the panel opinion, rehash the legal arguments that the panel properly rejected, and attempt to manufacture conflict."

In the 10th Circuit's decision, the majority ruled that "Congress's use of the word 'cede' an only mean one thing -- a diminished reservation."

The tribes emphasized that argument as ignoring the law's context.

However, Cannan said the tribes only pretended the word "cede" was the entire basis for the 10th Circuit opinion and "repeat this claim so frequently the reader almost begins to believe it."

Wyoming attorneys said the order was important to maintain "the status quo that has existed for over a hundred years and protects the settled expectations of the people of Riverton, the individuals residing on the other lands and within the ceded area, and the tribes."

With the attorneys agree "that this case is of exceptional public importance to the thousands of Wyoming residents whose lives and livelihoods would have been disrupted had the panel upset the status quo," the state's attorneys said that their opposition "misrepresents the practical effect of the decision" in a "flourish of hyperbole."

In the last month, the Arapahos have lost a bit of their legal muster in the suit.

Jeffrey Harris and Christopher Michel, two high profile attorneys with Kirkland & Ellis, have both announced they'll no longer serve as counsel for the tribes in the appeal efforts.

Harris and Michel are both Supreme Court clerks and are now leaving their firm after Michel took a job with the Department of Justice and Harris is moving into the White House working for the Office of Management and Budget.

The Arapahos' lead counsel on the case continues to be Paul Clement, former Solicitor General during the George W. Bush administration.

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